Some interesting questions but not too many answers arise from Latifa Bouabdillah’s victimisation claim victory against CommerzBank a couple of weeks ago. She was dismissed after an ongoing but previously undisclosed sex discrimination claim against her previous employer came to CommerzBank’s attention. It claimed that this gave the lie to her stated reasons for leaving that employer and therefore that its dismissal of her was the product of a justifiable breakdown in the relationship of trust and confidence.
The Employment Tribunal disagreed – it thought that the decision to dismiss was an “extreme” and emotional one (a finding made somewhat easier by the HR Partner’s description of her conduct as akin to that of a criminal) and not the product of a rational assessment of the impact of news of the claim upon her current employment. Although Bouabdillah’s claim of direct discrimination against CommerzBank failed, the dismissal had clearly been a product of her sex claim against the former employer and so her victimisation claim succeeded.
So three questions arise: (i) If you are not asked in your interview about any claim against your former employer, should you volunteer it? (ii) As prospective employer, should you ask about such claims? (iii) if the employer does ask and you still do not disclose the claim, where does that leave you?
Regarding the first question, you could take the view either that you want to be open and honest because you think this will help you to get off on the right foot with your new employer, or alternatively that it’s not relevant to your future performance and you want to leave the past behind you. You could also be forgiven a concern that your new employer may perceive your claim as evidence that you are a trouble-maker. There is no law here but the temptation must be to keep quiet about the claim unless either you are asked a direct question on the point (see below) or you already know that there is a reasonable likelihood of the thing making the Press. Otherwise I think you are entitled to regard whatever went wrong at your previous employer as very much your own business.
The second question – should the employer ask? – triggers even more questions. First and foremost, why? If it does find out that the individual was taking his previous employer to Tribunal, what would it do with that knowledge? What does it tell you that you could not gain from a question about reasons for leaving? CommerzBank’s problem is that it could not say that if it had known about the sex claim it would not have taken Bouabdillah on – that would have been blatant victimisation. Like any other prospective employer it has to say that knowledge of the employee’s Tribunal case is irrelevant to the merits of his or her candidature. That makes it correspondingly harder to use the coming to light of the very same information at a later point as the basis for dismissal. Think of it as one of those questions you should not ask at interview, not because the asking itself is unlawful, but because the use to which you could be accused of putting the answer may well be.
The third question presents a real dilemma. Imagine you are in the interview and you are asked a direct question (probably after the question about why are you leaving your current job, if that did not go well): “Are you making a claim to an Employment Tribunal?” What would you say? Telling the truth about making a claim creates the risk of being perceived as trouble, and telling a lie is simply that, telling a lie. On balance, better to admit to the claim, I think. If the employer then turns you down, you may have a victimisation claim, but it may well not do so. However, if you lie then that will definitely be grounds for dismissal, regardless of the merits of the Tribunal claim or its actual relevance to the new job.